De la Carriere v. GreeneAnnotate this Case
After appellants obtained a judgment in their favor, the trial court declared Greene the prevailing party and awarded him attorney fees under a contractual attorney fee provision. Greene appealed, contending that the trial court erred in calculating his damages. Greene later voluntarily dismissed his appeal. Respondent then moved for an award of attorney fees incurred on appeal.
The Court of Appeal reversed and held that the trial court erred in awarding respondent her attorney fees because Greene was the prevailing party in the action. The court explained that the fact that the court awarded respondent costs in connection with the prior appeal did not conclusively establish her entitlement to attorney fees under Civil Code section 1717. Furthermore, respondent was not entitled to attorney fees under Code of Civil Procedure section 128.5 where Greene's appeal was not frivolous.